SAN FRANCISCO (CN) — A Ninth Circuit panel ruled Wednesday that a lower court correctly denied the state of Idaho’s motion to intervene in the state of Washington’s complaint against the Food and Drug Administration over safe-use restrictions of the abortion drug mifepristone.
Guided by the Supreme Court’s decision last month to keep mifepristone, commonly referred to as the abortion pill, on shelves, a three-judge Ninth Circuit panel rejected Idaho’s argument that it would be harmed by an FDA decision that kept some restrictions on the drug but removed in-person dispensing requirements.
Senior U.S. Circuit Judge Sidney Thomas, writing for the panel, affirmed a federal court’s order denying Idaho’s motion to intervene. The Bill Clinton appointee also dismissed the portion of Idaho’s appeal concerning the federal court’s denial of permissive intervention for lack of jurisdiction.
Thomas wrote that Idaho’s complaint failed to establish a cognizable injury that could be traced to the FDA’s 2023 revision on safe-use restrictions on mifepristone. The panel also held that because Idaho sought different relief from Washington, it must independently satisfy the requirements for standing.
“Washington asks the court to enjoin the enforcement of any safe-use restrictions based on its view that they are not justified by any ‘known serious risk.’ Idaho seeks ‘something very different,’ asking the court to declare the 2023 changes to the REMS unlawful, vacate the revision and effectively reinstate the prior status quo, including the in person dispensing requirement,” Thomas wrote.
“As the district court recognized, reinstating the status quo would ‘run directly counter to [Washington’s] request’ by reducing the availability of mifepristone … Given the deep and obvious conflict between the parties’ objectives, we cannot conclude that Idaho seeks the ‘same relief’ as Washington,” he added.
Idaho had argued that it had standing because it is seeking the same relief as Washington — setting aside the FDA’s January 2023 Risk Evaluation and Mitigation Strategy.
In February 2023, ten states led by the state of Washington said in a lawsuit the FDA and the United States Department of Health and Human Services singled out mifepristone for unduly harsh restrictions, far exceeding the actual risk of the drug, in contrast with lesser restrictions imposed on other drugs with a significant track record of being less safe.
In March 2023, Idaho led a conservative coalition of states in a motion to intervene, arguing that Washington’s lawsuit jeopardized their legally protected interests in regulating the use of mifepristone within their borders.
Idaho claimed that elimination of the in-person dispensing requirement for mifepristone will lead to increased mifepristone use under conditions that are either dangerous or illegal. It argued the strategy would increase Medicaid costs, interfere with state law enforcement and harm women and fetal life.
U.S. District Judge Thomas O. Rice denied Idaho’s motion to intervene in April 2023, prompting an appeal to the Ninth Circuit.
At oral arguments, Idaho claimed that its strongest basis for standing was that the elimination of the in-person dispensing requirement would cause the state economic injury in the form of increased costs to the state’s Medicaid system.
Thomas wrote Wednesday that Idaho needed more, however.
“Allowing Idaho to proceed based on predictions of increased emergency room visits alone would give not just states, but every entity that provides health insurance or subsidized medical care, standing ‘to challenge any FDA decision approving a new drug.’ We decline to endorse this boundless conception of Article III’s injury requirement,” he said.
Thomas also noted that Idaho’s prediction that eliminating the in-person dispensing requirement for mifepristone would lead to illegal use of the drug was highly speculative.
“Speculation about the decisions of independent actors, without more, is not a proper basis for standing. Second, even if the availability of retail and mail-order dispensing does make mifepristone more difficult to police, we have never held that a logistical burden on law enforcement constitutes a cognizable Article III injury,” Thomas wrote. “Holding otherwise would greatly expand state standing to challenge any federal action that allegedly increases crime or disorder or imposes indirect compliance costs for state law enforcement.”
Thomas also determined that Idaho’s argument that elimination of the in-person dispensing requirement would endanger specific pregnant women and unborn children were concerns of the well-being of individual citizens — not a distinct interest of the state as a whole.
Thomas was joined on the panel by U.S. Senior Circuit Judge Mary McKeown, a Clinton appointee and U.S. Circuit Judge Morgan Christen, a Barack Obama appointee.
Attorneys for the state of Washington and Idaho declined to comment before publication.